Criminal Procedure Final Flashcards
When does double jeopardy attach?
Jury - Attaches when jurors are sworn in and is empaneled
Bench - When first witness is sworn in
Guilty plea - is entered
Miller v. Alabama
Sentencing of Minors Case
What the case says:
When a mandatory punishment of life without parole is imposed on a person under the age of 18 (when crime was committed), it is against the 8th amendment for cruel and unusual punishment.
Remember: It is not a constitutional violation if the state gives options between LWOP or LWP.
Procedures surrounding second and subsequent habeas petitions.
Second and subsequent habeas petitions are only considered if:
(1) good cause has been shown
(2) if it is not heard, it will prejudice the petitioner
Substantive Requirements:
(1) Showing of either a new rule of law that makes it retroactive - determined expressly by SCOTUS
(2) Factual Prejudice for a claim that could not have been discovered with normal due diligence.
(3) Proven by clear and convincing evidence.
What is and what is not a subsequent habeas petition based on a set of facts?
- 2nd/Subsequent petition challenges the same criminal judgment as previous petition.
- New Judgment between 2 habeas petitions, challenging new judgment is not 2nd/subseqent
- May be the same crime, but reheard on habeas grant and still in custody.
Determinate Sentencing
- Specific amount of time served
- Eliminates parole
- Legislative basis
Indeterminate Sentencing
- Release date left open
2. Broad discretion in imposing sentence
Does the 6th Amendment apply to post-conviction delays?
No, the speedy trial clause of the 6th amendment does not apply to sentencing proceedings - Betterman v. Montana
Which convictions might give way to a death sentence?
Homicide cases where the convicted is not mentally disabled or a minor.
No DP for non-homicide cases
Extrajudicial comments to the press.
- A prosecutor may not make extrajudicial statements to the media that are substantially likely to materially prejudice a criminal trial.
- Lawyer may not make out-of-court statements that the lawyer knows or reasonably should know will be public disseminated and have a substantial likelihood of influencing the potential jury pool.
- Statements to a grand jury must be actually or substantially prejudicial to warrant the dismissal of an indictment.
Strickland v. Washington
Ineffective Assistance of Counsel
Must fall below the objective standard set forth in test.
Test:
1. Actual prejudice from incompetence, and
- but for the prejudice from incompetence, the defendant would have most likely (reasonable probability) had a different outcome at trial.
Giglio v. United States
Failure to turn over exculpatory evidence
Evidence that might impeach the prosecution’s witness is is exculpatory and needs to be turned over to defendant.
How do you determine if someone will get bail?
Bail is usually determined by whether a person is a danger to the community or a flight risk Before the bail reform act, the standard was only flight risk.
- Was it a crime of violence
- Punishable by LWOP or death?
- Drug crime of more than 10 years
- Repeat offender
- Flight risk?
- Witness tampering
- Danger to the community
- Capital D?
What are the factors that determine danger to the community? (As it pertains to bail)
- Seriousness of offense
- Punishment faced
- Prior criminal record.
- Ties to community
- D’s Character
- D’s finances
Is there a right to bail?
No, there is no constitutional right to bail; however, there is an 8th amendment right prohibiting excessive bail that is cruel and unusual.
Are three strikes laws unconstitutional?
No, these are not UC per se.
Standard is:
1. Judiciary must demonstrate reasonable basis for the enhancement structure, and
- This structure advances goals of the judicial system in some substantial way.
What stages of a criminal proceeding does the 6th Amendment provide a right to attorney?
I Put A Frog In Mom’s Sandal
I: Initial hearing where there is a right to bail
P: Preliminary hearing
A: Arraignment
F: Felony Trial
I: Interrogation after Miranda
M: Misdemeanor where jail can be imposed.
S: Sentencing hearing.
Once, attached, then any deliberate attempt by the government to elicit statements from D about the crime is a violation of the 6th Amendment.
Deadlines in Speedy Trial Act:
Charges must be made: 30 days after arrest or summons
Trial: 70 days from indictment or initial appearance
Are plea agreements binding?
Yes, they are teated like a contract. The judge; however, does not have to accept the plea and there must be a finding of the court that there was a factual basis to the plea.
Batson v. Kentucky
Can’t strike jurors based on race or sex
Crawford v. Washington
Confrontation clause of the 6th Amendment
- Testimonial Statement of witness
- Not present at trial
- declarant unavailable
- Defendant had prior opportunity to cross
If these met, then witnesses statement will be allowed in.
If not met, violation of 6th Amendment
What is testimonial?
Statements made to police, or a trial-like setting where they have a reasonable expectation that this statement could be used in a criminal proceeding.
Requirements for Constitutional Plea Colloquy
What are the requirements for a plea?
“King Victoria is caring”
- Knowing
- Voluntary
- Intelligent
- Competent
What decisions does the lawyer need to speak with defendant about?
- Settling
- Pleas
- Waiving jury trial
- Whether client will testify
Requirements for accepting a plea.
- Address the D in open court
- Adivse D of rights being waived
- Adivse nature of charge
- Determine factual basis.
- Set forth terms of any agreement
Sentencing Enhancements: How are they Proven?
- Must be proven to trier of fact
- Beyond a reasonable doubt
SCOTUS has held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory max must be submitted to a jury and proved beyond a reasonable doubt.
When does selective prosecution violate due process?
- If prosecutor has discriminatory intent, and
2. it has discriminatory effect
How does the defendant prove a violation of due process in selective prosecution?
- D has the burden to prove selective prosecution with prosecutor.
- D must show different treatment of similarly situated individual of a different protected class, and discriminatory purpose.
- Selective prosecution is not a defense
- It is an unconstitutional basis for charging.
What is reversible error?
An error committed by the judge or jury or a bad faith act by a party attorney that deprives a criminal defendant of a fair trial.
What is harmless error?
Ruling by trial judge, which is later held to be mistaken by a higher court, but is not so prejudicial to the D as to warrant reversal.
Speedy trial
Who has the right to a speedy trial?
All accused have a 6th Amendment right to a speedy and public trial
Attaches at arrest or formal charging.
Does NOT apply to sentencing phase
Pre-Charging Delay
Does not violate 6A
May violate due process if:
- SOL
- Delay
a. Substantial prejudice
b. concrete harm
c. intent to gain advantage by prosecutor
Factors that courts look at in speedy trial 6A violations?
- Length of delay
- Reason
- Assertion of right
- Prejudice
approaching 1 year is presumptive prejudice.
Remedy: Dismissal w/ prejudice
Delays by defense counsel
These are attributed to the defendant.
Apprendi v. New Jersey
Remember, any fact, other than prior conviction, that increases the max penalty for a crime must be submitted to a jury and proven beyond a reasonable doubt.
Reasonable Doubt
Proof of such convincing nature that a reasonable person would not hesitate to rely on it.
Multiple Punishments and Double Jeopardy
5A - Double Jeopardy provides 3 protections:
- Against second prosecution for the same offense after acquittal.
- Against second prosecution for the same offense after conviction.
- Against multiple punishments for the same offense.
If D’s conduct may be prosecuted for two or more crimes, apply block burger
Invoking 5th and the Prosecution
Prosecution cannot talk about the silence if invoked. They can talk about pre-arrest silence.
Blockburger Test
- If two offenses require proof of an additional fact
- which the other case does not require, then
- they do not comprise the same offense.
When can a attorney properly decline a case?
- When it will result in violation of ethical rules
- When physical or mental condition impairs lawyers ability
- Client persists in criminal conduct
- Client fails to fulfil obligations to lawyer after notice
- Unreasonable burden
- Other good cause
Habeas Statute of Limitations
Generally 1 year
6 months for death sentence
Can be tolled if:
- Pursuing rights diligently, and
- Extraordinary circumstance.
Constitutionality of Methods of Execution
Under 8th Amendment
- Not sever enough to be degrading
- Not arbitrary
- Not unacceptable to the society in large
- Not excessive (based on decency)
To challenge you need to:
- Show that method used creates unacceptable risk of sever pain, and
- There is a known and alt method available
Brady v. Maryland
Prosecution must turn over exculpatory evidence favorable to defense.
Bills of Attainder
Laws that punish individuals after the fact of their actions.
Ex Pos Facto
Laws that punish or increase punishment for crimes not punishable at the time they were committed.
Solem v. Helm
LWOP for a seventh non violent felony is volitive of the 8th Amendment.
i.e. relatively minor conduct, not crimes against people is not going to allow for LWOP
Bruton v. United States and the Bruton Problem
The admission of a d’s confession incriminating a co-d violates the 6th Amendment Confrontation Clause
Bruton Problem: Criminal Ds have a right to cross the witness against them.
How to fix:
- Not use confession
- Separate trial
- Redact confession completely
Define Knowing, Voluntary, and Intelligent
Voluntary: No force, threat, promises (other than plea agreement)
Knowing: D is made aware of charges against him.
Intelligent: Is in control of mental facilities.
Sentencing Factors from Federal Guidelines
- Nature and offense of crime
- D’s history
- Need for sentence imposed
- Kinds of sentence imposed
- Applicable sentencing guidelines
- Pertinent policy statements
- Avoid unwarranted sentence disparity
- Provide restitution
